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Why New Hampshire's public defender shortage is getting worse

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Emily Corwin
/
NHPR

Public defenders serve an important role in the criminal justice system by providing services for those who cannot afford an attorney. There’s been a longstanding shortage of public defenders in New Hampshire, but now it’s getting worse.

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In the last year, the state lost public defenders at twice the normal rate. NHPR’s Morning Edition host Rick Ganley spoke with Robin Melone, president of the New Hampshire Association of Criminal Defense Layers, and Nina Gardner, chair of the New Hampshire Judicial Council, about why this is happening.

Takeaways:

  • The New Hampshire Public Defender, a nonprofit that handles 85 percent of the state’s indigent cases, is having to reduce their caseload or stop taking cases for the first time in 20 years.
  • Public defenders are burned out. Many are leaving the system now because of the unpredictable lengths of cases due to the pandemic, leading to even higher caseloads. 
  • Some defendants are left sitting in jail awaiting trials longer than usual because they need representation.
  • Last year, the state reassigned about 1,500 cases that normally would be handled by public defenders to contract or private attorneys.

Transcript:

Rick Ganley: Let's start with you, Nina. What's changed in the past year with the pandemic? How has that made things worse?

Nina Gardner: Public defenders are leaving the system now primarily due to incredibly high caseloads. Most of the attorneys in the program, a fair number of the attorneys, at least 100 have more than 100 open cases. It is demoralizing. They have a very difficult time dealing with those large numbers of cases and trying to get them resolved.

Rick Ganley: It's really a case of burnout.

Nina Gardner: It's a case of burnout. And I think something that we've all talked about is COVID fatigue, that on top of the fact you've got heavy caseloads, it's been hard to navigate the system. Courts have been open to some extent, but not fully. Their clients are scattered and trying to get prosecutors on the other side available to talk about the cases. It's been challenging.

Rick Ganley: Robin, can you talk about the effects on the state's criminal justice system because of this?

Robin Melone: I think, at the heart this is a crisis of people, right? Anybody involved in the criminal legal system right now is feeling this impact. As far as the attorneys, we have relied on a system that opens cases and closes cases on a fairly predictable basis. And the decrease in resolving cases over the past 18 months because of the pandemic means that those cases are lingering longer. But if you think about the criminal legal system as a faucet, that faucet has continued to run. So those case numbers are higher. People carry those loads. This is hard work. You know, whether you're a defense attorney or a prosecutor, we don't come to this work lightly. For most people who do criminal legal work, it is a passion and a calling. We carry people's burdens and we're carrying more of those burdens.

So the compassion fatigue, the continued desire to give and support others remains, and we continue to show up and do that work. But it's exhausting. And I think the other body of people involved here are the clients. I mean, we have clients who are sitting in jail awaiting trials. And I think that those cases have certainly gotten some attention. But we have thousands of cases in the circuit court. And those people as well, they don't just need a body to show up and represent them. They need an advocate and an attorney. And we're struggling to make sure that we can meet those demands right now.

Rick Ganley: Yeah, there's a ripple effect through so many levels.

Robin Melone: Absolutely.

Rick Ganley: The New Hampshire Public Defender is a nonprofit that handles 85 percent of indigent cases, and for the first time in 20 years the organization is having to reduce their caseload or stop taking new cases altogether. Those defendants still need an attorney, Nina, who represents them?

Nina Gardner: Well, who represents them is a contract attorney if we can find one who is willing to take a case. Or we reach out to the private defense bar and see if they will take them. There has been a tremendous effort provided by the contract attorney system, as well as the private defense bar in the state, who have just stepped up, Rick, and taken cases whenever they could. And we reassigned about 1,500 cases that normally would have gone to the public defender last year to contract and assign counsel. And these folks are just carrying a burden that has not previously been part of the system.

But the moment we're at is that we do not have enough attorneys. And that is despite our ongoing recruitment efforts and recruiting at The Public Defender. So we are at a kind of a crisis moment where there are defendants who are not getting attorneys appointed easily.

Rick Ganley: Nina, let me ask you, what is the state doing to help with this? What can they do for recruiting?

Nina Gardner: Sarah [Blodgett], the executive director of the Judicial Council, and I have been keeping the courts informed. We've been up to the Supreme Court and talking with the administrative judges. So that we're looking for solutions, ideas to move cases more speedily through the system. And the situation in New Hampshire is not unique. We are not alone in this and other states that are facing it are coming up with other approaches to doing it. Some states have waitlists for appointment of counsel after a waiver of timely trials motions, but we are hoping that we don't need to get to that at the moment. I mean, but we are well aware that this problem exists in other states.

Robin Melone: I think it's important to note that this is not just the defense bar issue. I think that the Constitution requires representation. Gideon v. Wainwright placed the obligation on the government to provide counsel for indigent defendants. So we are feeling the impacts of that, but I think it's important to note that this is a criminal legal system crisis that is impacting caseloads for prosecutors and impacting the court dockets. I'm sure the judges and the court staff are feeling similarly exhausted and overburdened. It is a system-wide problem and it will take system-wide solutions to get us on the other side.